What are the limits of confidentiality between psychologist and patient?

The confession of a murder during a psychological therapy session led to the arrest of a man in Ubatuba, on the coast of São Paulo. The psychologist reported the case to the Civil Police, which sent teams to the place where the victim’s body would be buried. The man was arrested and the police are investigating details of the crime.

The episode ignited discussions about the boundaries between the secrecy established between psychologists or doctors and their patients.

Lawyer specializing in Civil Law Marcus Vasconcelos, member of the LGBT Health Technical Committee of the State Department of Health of Alagoas, says that health professionals need to adapt administratively and legally to the legislation created by their professional associations, as well as the laws that deal, directly and indirectly, with their profession within their area of ​​expertise.

“We can cite an extensive set of laws that today, in law, encompass the universe of Medical Law: as a guiding basis, the Federal Constitution; the investigation of civil liability in the Civil Code and Code of Civil Procedure; responsibility for the use and processing of data by the General Data Protection Law (LGPD); criminal liability in the Penal Code, among other relevant matters,” he explains.

According to the specialist, as in the field of law, there are no absolute rules, that is, that do not allow exceptions, in other professions.

“The breach of professional secrecy – especially in cases of confidentiality and professional secrecy – is accepted as long as it is to protect fundamental rights. In these cases, a legal consultancy with a specialized lawyer would be aimed at adapting the health professional’s area of ​​activity to the weaknesses faced, with the aim of preventing possible damage – for themselves, for the patient and for society”, says Vasconcelos .

The breach of professional secrecy can only be applied within exceptions, so that the integrity of both third parties involved, as well as a community, society, and, mainly, the professionals involved in these contexts are preserved.

“It is important to remember that the breach, as an exception to the rule, serves precisely to protect other more important rights – such as the right to life – since if we considered that the breach of secrecy could never occur, confidentiality would be overlapping itself. right to life, which is inadmissible from a constitutional point of view”, he says.

What the Federal Council of Psychology says

CNN consulted the Federal Council of Psychology (CFP) on the issue of confidentiality between psychologist and patient. In a note, the CFP stated “it does not issue positions regarding any cases and occurrences that are not under its direct analysis”, “because it is a superior appellate instance in judgments of ethical processes regarding the conduct of Psychology professionals”.

However, the board approached the issue from a theoretical point of view. The council points out that the work of psychologists is governed by the Code of Professional Ethics for Psychologists (CEPP), approved by a 2005 resolution (see below ) and which provides for the fundamental principles and responsibilities that guide the practice of Psychology.

“It is important to emphasize that a code of professional ethics, by establishing expected standards regarding the practices carried out, seeks to encourage the self-reflection required of each individual about their practice, in order to hold them accountable, personally and collectively, for actions and their consequences of this exercise. professional”, says the CFP in a note.

The council states that, in this context, specialists have professional autonomy to work with the demands they receive in the practice of psychology, based on solid theoretical bases and the knowledge acquired in their training process, in line with professional regulations.

“It is important to emphasize that the Code of Ethics of each profession, which regulates and supervises professional conduct, always tends to guide the occurrences of breach of secrecy – that is, the analysis also occurs at the administrative headquarters, that is, by the body, as also judicially. It is important to consider professional associations, since the professional content created by them complements and supports existing laws and already defined guarantees”, says lawyer Marcus Vasconcelos.

What does the Psychologist’s Code of Ethics say?

Confidentiality of information between patient and psychologist is the subject of two articles in the Code of Professional Ethics for Psychologists. The document, from 2005, states that “it is the psychologist’s duty to respect professional secrecy in order to protect, through confidentiality, the privacy of people, groups or organizations, to which he has access in professional practice”.

According to the regulations, there is the possibility of breach of secrecy in accordance with cases provided for by law. “Excepting the cases provided for by law, the psychologist may decide to breach confidentiality, basing his decision on the search for the least amount of damage”. “In case of breach of secrecy provided for in the caput of this article, the psychologist must restrict himself to providing the strictly necessary information”, details the document.

“The above excerpts seek to show that it is up to the psychologist, based on the guidelines of the Code of Professional Ethics (CEPP), to choose the best conduct to be adopted in each case and specific situation”, concludes the CFP.

“The breach of confidentiality is possible, but we have to remember that it is an extreme attitude, whose objective is to protect the professional and other people who are connected with the situation, whose possibilities foresee serious consequences. In this way, since the breach of secrecy is used in situations that cannot be disclosed, all damages caused are subject to the responsibility of the professional – administratively and judicially”, explains the lawyer.

medical ethics

Professional secrecy in the field of medicine is addressed in a chapter of the Code of Medical Ethics. The text states that it is forbidden for the physician to “reveal a fact that he has knowledge of by virtue of the exercise of his profession, except for good reason, legal duty or written consent of the patient”.

In a single paragraph, the document highlights that the prohibition remains in the following situations:

• even if the fact is public knowledge or the patient has died;
• when giving testimony as a witness. In this case, the doctor will appear before the authority and declare his impediment;
• in the investigation of suspected crime, the doctor will be prevented from revealing secrets that could expose the patient to criminal proceedings.

Consequences of breach of confidentiality without plausible reason

The breach of confidentiality of patient information without good reason can lead to the liability of the healthcare professional.

“There are several possibilities for holding professionals accountable who use breach of confidentiality in situations where they do not involve publicity – from the cancellation of professional registration by the class entity, to the civil and criminal liability of those involved”, says the lawyer.

In the penal code, in its article 154, it is possible to provide for the criminal liability of people who use the profession to reveal confidential information, precisely in cases that are not serious, with the penalty of detention from 3 months to 1 year or a fine.

“In the case of the Code of Medical Ethics, for example, provided by the Federal Council of Medicine, some situations are established where it is possible to break it, such as in cases of suspected abuse of the elderly or spouse, child abuse or aggression, injuries by firearm or similar, among other situations. The ban on disclosing sensitive information, for example, about people living with HIV and AIDS is, unfortunately, a very recurrent theme for health professionals from different areas”, he points out.